Challenge to UK Government’s Section 35 Order on the Gender Recognition Reform (Scotland) Bill: Ministerial statement

Statement delivered to the Scottish Parliament by Social Justice Secretary Shirley-Anne Somerville on 19 April 2023.

Thank you very much Presiding Officer,

Parliament has already been informed of the petition lodged by Scottish Ministers last Thursday for judicial review of the Secretary of State for Scotland’s decision to make an Order under Section 35 of the Scotland Act, preventing the Gender Recognition Reform (Scotland) Bill from proceeding to Royal Assent.

I must make clear that, as always with live legal proceedings, there are strict limits on what I can say and I must not enter into the substance of our petition or the UK Government’s Statement of Reasons. I am sure that members will understand this restriction. However I wanted to make this statement today to explain the decision as fully as possible to Parliament.

We have not taken this decision lightly. We have considered it carefully. And it was clear to us in our deliberations that allowing the UK Government’s veto on the democratic decisions of this Parliament to go unchallenged would undermine our democracy. Equally, the veto was used with no prior discussion or warning, and without ever hearing from the UK Government about what amendments they would have wanted in the Bill. That cannot go unchallenged because of the implications for future legislation and for devolution, particularly as the Secretary of State refused our offers to work on potential changes to the Bill.

To this day, I can confirm, the UK Government has not offered up a single area for amendment that would satisfy them in relation to the issue of Gender Recognition Reform.

Therefore if we want to take a stand and protect our democracy and devolution, there is no option but to pursue this legal challenge.

The 1998 Scotland Act that established devolution, included Section 35 which allows the Secretary of State to make an Order prohibiting the Presiding Officer from submitting a Bill for Royal Assent, even though the Bill is within this Parliament’s legislative competence.

The intention for how powers should operate was made clear in comments made by the UK Government Minister Lord Sewel in July 1998 when he said, and I quote:

“These powers of intervention are of course meant to be long stops… Their existence should be sufficient to ensure consultation between Whitehall and Edinburgh so that there may be no need for them to be used.”

There were concerns at the time that powers under the Scotland Act could amount to a veto on devolved legislation. There was discussion of the need for controls on how the powers might be used, and that they could be used as a political tool. Indeed it was dubbed the Governor General Clause and described by Conservative MP Michael Ancram, as having, and I quote “a power to bring the actions of the Scottish Parliament to a halt”.

The need for some control around the use of Scotland Act powers is reflected in the Memorandum of Understanding between the UK Government and devolved administrations. Updated in 2013, it clearly states that, whilst the legislation contains powers for the Secretary of State to intervene in devolved matters, these powers should be used, and I quote again “very much as a last resort”.

In fact, the UK Government’s unprecedented use of Section 35, was the very opposite of a last resort.

The Memorandum goes on to state:

“The UK Government and the [devolved] administration concerned will therefore aim to resolve any difficulties through discussion so as to avoid any action or omission by the devolved administration having an adverse impact on non‑devolved matters. If formal intervention should become necessary, the UK Government will whenever practicable inform the devolved administration of its intentions in sufficient time to enable that administration to make any representations it wishes, or take any remedial action.”

There were no such representations from the UK Government. There were no such representations made in the consultations of 2017 and 2019 – when of course the UK Government planned to make similar reforms. And there were no representations throughout the nine month passage of the bill. The UK Government took no steps to resolve their concerns and did not raise the possibility of a Section 35 Order with us.

The Scottish Government has been proposing gender recognition reform since 2016, to bring it in line with international best practice. We held two public consultations including on a full draft Bill and impact assessments. With over thirty thousand responses combined, this was some of the widest consultation ever undertaken on Scottish legislation. The UK Government made no response and did not provide a view.

In fact the UK Government proposed similar reforms themselves and in their 2018 consultation explicitly recognised that Scotland could take its own approach stating:

“Gender recognition is devolved to Scotland. That means Scotland can have its own system for gender recognition if it wants to.”

The UK Government undertook to work closely with the Scottish Government on the implementation of the Scottish proposals, “especially on the implementation of its proposals where powers are not devolved, [and] mutual recognition of certificates issued in different parts of the UK across the UK.”

While the UK Government subsequently dropped their proposed reforms, the joint work on implementation went ahead. At official level there were fortnightly meetings between UK and Scottish officials as the Bill progressed through Parliament, including early work towards a Section 104 Order, which is the usual method for resolving impacts between devolved and reserved law.

Far from raising concerns, the UK Government explicitly endorsed Scotland’s ability to take forward reforms, and otherwise made no comment. They gave no response to the Committee’s call for evidence. And there was no Ministerial contact until the UK Minister for Women and Equalities responded to a letter sent in October by my predecessor Social Justice Secretary, Shona Robison, which led to a meeting the day before Stage 3 of the Bill. Cross-border effects were discussed at that meeting, but no changes were requested by the UK Government, and there was no mention of consideration of a Section 35 Order.

The Secretary of State for Scotland’s first contact on the Bill was a letter on the night of 16 January informing us that he would be laying the Section 35 Order the next day. A House of Commons motion seeking to annul the Order was not allocated debating time by the UK Government.

So rather than raising concerns or amendments through normal government channels, rather than following the Memorandum of Understanding, the Secretary of State used the Section 35 power exactly as even Conservative MPs feared at the time of the 1998 Act: an absolute veto to strike down any devolved legislation, passed by a majority of this Parliament, he dislikes without discussion, based on political not policy judgement.

Immediately after receiving Mr Jack’s letter in January, Shona Robison offered a meeting with the Secretary of State in which she offered a potential way forward: the Scottish Government would work with the UK Government at both ministerial and official level to explore potential amendments to the Bill.

The Secretary of State absolutely refused this offer, stating that there would be no further meetings between the governments on this issue. He set out three options for the Scottish Government: we could drop the Bill passed by a majority of this Parliament altogether; we could address his concerns in an amended Bill but without providing what areas needed to be amended to allow the Section 35 to be dropped; or we could pursue legal action.

The UK Government’s Statement of Reasons does not provide a basis for amending the Bill, and Mr Jack, in direct contradiction to the position in the UK consultation, has stated that any divergence of approach in Scotland would be unacceptable, saying: “In short, two different regimes create adverse effects”.

It has therefore proved impossible to find a way forward or to consider a form of amended Bill that this Parliament would agree to and that would also lead the Secretary of State to revoke the Order.

This Scottish Government remains committed to the Bill, as amended and agreed by a majority in this Parliament, which would make it easier for trans people to live their lives and access their existing rights. Over 350 million people around the world already live in countries and regions with the type of system proposed in the Bill.

Irrespective of your view on the Bill, and I recognise that some people remain firmly opposed to it, challenging the UK Government’s use of Section 35 is the only option for a Government that wants to uphold and defend the democratic will and devolved powers of this Parliament.

To not challenge the Order would mean accepting that the Secretary of State can ultimately strike down any devolved legislation, even after full and detailed scrutiny by Parliament and after MSPs have amended, debated and voted on a bill. If, after all of that, one person can simply decide the Bill should not proceed without that decision being questioned, it sets a precedent that calls into question devolution itself.

If the UK Government can use this power once without being challenged, how long will it be before they use it again? As we have seen with the Sewel Convention, once a precedent has been set, the UK Government will find it easier to justify using a power again and again, gradually eroding the hard-won devolved powers of Scotland.

To conclude, Presiding Officer, I know that whilst the Bill was passed by an overwhelming majority of members not all MSPs, or all of the wider Scottish public, agree with the aims of this Bill.

But I hope we can agree that the unprecedented intervention of the Secretary of State for Scotland to halt a Bill on devolved issues already passed by this Parliament must be challenged.

That is why Scottish Ministers have lodged this petition for judicial review. We will fight to defend the devolved competence and democratic function of this Parliament, and it is right that we do so.

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